The Verge and TechDirt jump on The Next Web bandwagon

Amazingly, TechDirt and The Verge have now sided with The Next Web – all three have claimed that Google didn’t say what it said, or didn’t mean what it said, or what it said is taken out of context.

That’s rubbish. Google said what it said – it’s there in black and white and they all quote it. It was said by lawyers, so of course they meant what they said. And how do you take a motion to dismiss a class action out of context?

And saying to users, don’t worry, you’re covered by Google’s existing terms and conditions and privacy policies is a wee bit naive – that can all be arbitrarily changed. European privacy regulators are not taking action against Google because it changed its privacy policy, but over what it changed the privacy policy into.

The question is not what Google said, but why it said it. OK, here’s my layman’s take.

This is big. It’s not a court case that Google can afford to lose. If it did, it could potentially jeopardise the entire business model for Gmail. And without Gmail, where is Drive?

Google almost certainly will not lose this case. But the ‘what if…’ doesn’t bare contemplating. Google has to be absolutely certain of winning. And that’s where the invocation of the ‘third-party doctrine’ comes in. It’s the nuclear option defence.

Now the three Google apologists all say, wait a minute, Google is only talking about non-Gmail plaintiffs. So? It still cites the third-party doctrine – and show me where in the Smith v. Maryland ruling it says, “this ruling only applies to non-Gmail email users.”

But Google is being more clever than this. By invoking Smith v Maryland, Google is saying to the government, if you take me down, I’m taking you down as well. The government relies too much on this doctrine in its own surveillance practices to allow it to be overturned in a case against Google. So this statement by Google is a form of insurance to make sure it doesn’t lose the case.

What Google is saying very clearly is that users do not have a legal expectation of privacy and that it has the legal right to be a right bastard. The only bit where The Next Web, The Verge and TechDirt have got it right is that Google is not saying it is or will become a right bastard – only that legally it can.